UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOAN H. BRAITSCH,

Plaintiff-Appellant,

v.

EMC CORPORATION,

Defendant-Appellee, No. 95-2503

and

THOMAS AARON; MICHAEL GRILLI;

FRANK KEANEY,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-94-1693-A)

Submitted: August 22, 1996

Decided: September 12, 1996

Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard L. Swick, SWICK & SHAPIRO, P.C., Washington, D.C., for

Appellant. Whitney Adams, Washington, D.C.; C. Torrence Armstrong, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Joan H. Braitsch filed a civil suit claiming gender discrimination

under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C.A. § 2000e (West 1994), retaliation, and violation of the Equal

Pay Act, 29 U.S.C. § 206(d) (1988), arising out of her employment

with, and termination by, EMC Corporation. Braitsch appeals the district court's entry of judgment on behalf of EMC, based on its grant

of EMC's Fed. R. Civ. P. 50(a) motion at the close of Braitsch's trial

evidence. For the reasons set forth below, we affirm.

This Court reviews de novo the grant or denial of a motion for

judgment as a matter of law. Gairola v. Virginia Dep't of Gen. Servs.,

753 F.2d 1281, 1285 (4th Cir. 1985). The standard of review for the

granting of a judgment as a matter of law is whether the evidence is

so substantial or conclusive that any contrary verdict would necessarily be based on speculation or conjecture. Id. In considering such a

motion, the court must construe the evidence in the light most favorable to the party against whom the motion is made. Garraghty v.

Jordan, 830 F.2d 1295, 1302 (4th Cir. 1987). The question is not

whether there is no evidence, but whether there is sufficient evidence

upon which a factfinder can properly proceed to reach the verdict

sought. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.),

cert. denied, 353 U.S. 974 (1957).

This Court's review of the record and transcript in this case reveals

that Braitsch failed to establish a prima facie case of employment discrimination on the basis of gender. See O'Connor v. Consolidated

Coin Caterers Corp., ___ U.S. ___, 64 U.S.L.W. 4243 (U.S. April 1,

1996) (No. 95-354); see also McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). The trial evidence established that despite the

fact that Braitsch's compensation package was less than employees

(both male and female) hired in 1991 and later, Braitsch admitted that

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she was hired at the same compensation package as the other

employee hired in 1990 (a male). Moreover, she admitted that she

failed to make sales quota in either 1990 (her first year of employment) or 1991--even by her own calculations--and that the male

employee hired at the same time who also failed to make quota in

either his first or second year was likewise terminated in his second

year of sales.* Nor did Braitsch present any evidence that her quota

was higher than that of her male counterparts or that her sales territories were inferior. Although Braitsch disputed the manner in which

credit for sales made were attributed to individual employees, we find

no evidence to support a reasonable conclusion of gender discrimination. In addition, we find that EMC's failure to put Braitsch on a formal performance improvement program prior to her termination,

given that EMC failed likewise to put two of the three male employees terminated for failing to meet quota on such a program, likewise

fails to establish gender discrimination.

Nor did Braitsch rebut the legitimate, nondiscriminatory reason

EMC proffered to support its termination of Braitsch, that is, her failure, after her second year of sales, to meet her sales quota. See Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 256

(1981); Conkwright v. Westinghouse Elec. Corp. , 933 F.2d 231, 234-

35 (4th Cir. 1991).

Given these facts, we find, as did the district court, that Braitsch

failed to establish facts sufficient to prove a prima facie case of gender discrimination relative to her compensation, assignments, or termination. Nor did she establish retaliation for engaging in a protected

activity. Finally, we find that the district court's grant of EMC's Rule

50(a) motion was likewise proper as to Braitsch's Equal Pay Act

claim. We dispense with oral argument because the facts and legal

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*Other evidence at trial revealed that two other male employees who

failed to make their quotas were terminated in their first year.

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contentions are adequately presented in the materials before the Court

and argument would not aid the decisional process.

AFFIRMED

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